If you or someone you know has been issued a federal grand jury subpoena, you should be advised that your rights before the grand jury are quite limited. Prosecutors will subpoena a witness to appear in front of a grand jury because he or she thinks that you have information about a crime that was done by a third party.
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The prosecutor wants to get that information from you so they can get an indictment against that third party. Or, the prosecutor believes the witness is guilty of a crime and he or she wants to uncover the evidence against that witness. Be advised that if you appear in front of a grand jury, you do not need to be warned that you could become a target of the investigation.
Why Would You Get a Grand Jury Subpoena?
Prosecutors will usually issue such a subpoena to witnesses because:
- The prosecutor thinks that the witness possesses important information about a crime allegedly done by another party, and wants to get that information from the witness for an indictment.
- The prosecutor sees the witness as a potential crime perpetrator and wants to get evidence against that person.
Your attorney usually can confer with the prosecuting attorney to learn if you are a target of the investigation. If so, your attorney may try to work out a deal: You would agree to testify in exchange for being immune from prosecution.
Types of Immunity
The prosecutor can give you immunity if you refuse to testify based upon the 5th Amendment, which states that you do not have to testify if what you say would incriminate you. In this case, the prosecuting attorney may offer two sorts of immunity:
- Transactional immunity, meaning that you cannot be prosecuted for any type of crime related to the subject matter.
- Use immunity, meaning that you may be prosecuted later for a crime related to the topic in your testimony, but the testimony given cannot be used in such future prosecution.
A prosecutor may give you immunity if you are a ‘small fish’ in the federal case. He or she will want to get your testimony against the big fish in the case. For instance, if you are a small time drug dealer arrested for dealing small quantities of marijuana, you might get immunity in exchange for your testimony about the person from whom you are buying the drugs. If you decline to testify after you are provided with immunity, you can be held in contempt of court.
Tips to Remember When Testifying
- Your attorney cannot come into the grand jury room with you, but he can be right outside the door. You do have the right to consult with your attorney after every question. You may spend as much time as you want talking to your attorney about each question. In most federal jurisdictions, you can take notes of any question you are asked and share them with your lawyer, who has prepared you for your testimony.
- You should not agree to a pre-grand jury interview. You are not required to speak to any government agent before the grand jury meets. Some federal prosecuting attorneys are clever at tricking people into interviewing with federal agents before the grand jury date. The letter that comes with your subpoena could ask you to show up early at the grand jury room to speak with federal agents. This is dangerous for you and you should not do it. You could make an admission during the conversation that harms your case. You also could be accused of lying to the agents as well. This interview isn’t recorded, so it’s their word against yours.
- Remember this about grand jury secrecy: The jurors and the prosecutors are under order to keep any testimony in front of a grand jury as secret. However, the secrecy rule does not apply to you the witness giving testimony. If you like, you can tell everyone about what you say to the grand jury. It might not be in your interest to do that, but it is up to you if you want to keep the testimony secret. Some prosecutors may want you to not disclose the subpoena; it could in some cases cause the case to become more difficult for the government to prosecute if word gets out about your subpoena. They may try to bully you into staying quiet, but you are under no legal obligation to do so, if you choose not to stay quiet.
- The government, however, must not reveal anything about the case being heard before a grand jury. This includes your testimony and it goes further. The government may not even state that you appeared before a grand jury. Some prosecutors get sloppy on this and may tell that you have been subpoenaed. Your attorney should be aggressive in forcing the government to not reveal anything about your testimony.
Also, know that lawyers cannot go with clients into the grand jury room. These proceedings are closed, and witnesses are not allowed counsel during the proceeding. Lawyers can stay near the room and witnesses can leave the room to speak with their lawyer as needed. Some lawyers will advise their clients to leave the room after each question is asked so they can consult with their lawyer.
Note that in some grand jury subpoenas, you may receive what is known as a ‘duces tecum’ which requires you to turn in certain documents or objects for the grand jury to go over as part of the investigation. The documents that you are required to submit are listed in the subpoena.